NO. C071887

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

IN RE THE MARRIAGE OF

DAVID M. FERRIS AND SUSAN C. FERRIS

DAVID M. FERRIS, Respondent,

v.

SUSAN C. FERRIS, Appellant.

Appeal From the Sacramento Superior Court

Case No. 98FL05615

Hon. Matthew Gary, Judge Presiding ________________________________________

APPELLANT’S REPLY BRIEF ________________________________________

JAMES BROSNAHAN* (SBN 34555) WILLIAM KENNEDY (SBN 61701)KEVIN A. CALIA (SBN 227406) STEPHEN GOLDBERG (SBN 173499)DEVON EDWARDS (SBN 264833) LEGAL SERVICES OF ANDREW BERNICK (SBN 276115) NORTHERN CALIFORNIA MORRISON & FOERSTER LLP 515 12th Street 425 Market Street Sacramento, CA 95814 San Francisco, CA 94105-2482 Tel: 916.551.2150Tel: 415.268.7000 Fax: 916.551.2195Fax: 415.268.7522 bkennedy@lsnc.net JBrosnahan@mofo.com

Attorneys for Appellant

SUSAN C. FERRIS

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................................................ ii 

INTRODUCTION ........................................................................................ 1 

LEGAL ARGUMENT ................................................................................. 2 

I.  SUSAN REQUESTED COUNSEL .................................................. 2 

II.  APPOINTING COUNSEL FOR SUSAN WOULD HAVE MADE A SIGNIFICANT DIFFERENCE IN THE PROCEEDINGS BELOW ................................................................ 3 

III.  DAVID DOES NOT DISPUTE SUSAN’S RIGHT TO COUNSEL ....................................................................................... 10 

IV.  FEDERAL AND STATE LAWS PROTECTING PERSONS WITH DISABILITIES GAVE SUSAN A RIGHT TO COUNSEL IN THIS CASE ............................................................ 12 

V.  IT IS UNDISPUTED THAT THE TRIAL COURT ERRED BY IMPOSING THE $2,500 SANCTION ..................................... 12 

CONCLUSION .......................................................................................... 13 

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TABLE OF AUTHORITIES

Page(s) CASES

Biscaro v. Stern (2010) 181 Cal.App.4th 702 .................................................................. 4

Chapman v. California (1967) 386 U.S. 18 ................................................................................. 4

Franco-Gonzalez v. Holder (C.D. Cal. 2013) 2013 WL 3674492 ................................................... 12

In re Emilye A. (1992) 9 Cal.App.4th 1695 ............................................................ 10, 11

In re James F. (2008) 42 Cal.4th 901 .................................................................... 4, 5, 6

In re Jay R. (1983) 150 Cal.App.3d 251 ................................................................ 11

In re Malinda S. (1990) 51 Cal.3d 368 ..................................................................... 10, 11

In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161 .................................................................. 12

In re Sade (1996) 13 Cal.4th 952 .......................................................................... 11

Payne v. Superior Court (1976) 17 Cal.3d. 908 .......................................................................... 11

People v. Allen (2008) 44 Cal.4th 843 .......................................................................... 10

Salas v. Cortez (1979) 24 Cal.3d 22 ................................................................. 10, 11, 12

United States v. Gonzalez-Lopez (2006) 548 U.S. 140 ............................................................................... 4

TABLE OF AUTHORITIES (continued)

Page(s)

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CONSTITUTION AND STATUTES

Cal. Const. art. I, § 7 .................................................................................. 10

California Family Code § 271 ..................................................................................................... 12 § 3020 ........................................................................................... 7, 9, 11 § 3030 ..................................................................................................... 7 § 3040 ............................................................................................. 11, 12 § 3048 ..................................................................................................... 6 § 3060. .................................................................................................... 6 § 3063 ..................................................................................................... 6

California Welfare & Institutions Code § 16000 ................................................................................................. 11

OTHER AUTHORITIES

Mnookin, Maccoby, Albiston & Depner, What Custodial Arrangements are Parents Negotiating? , Divorce Reform at the Crossroads (S. Sugarman edits. 1990) ................................................... 9

1

INTRODUCTION

A parent’s interest in the companionship, care, and custody of his or

her children is compelling, fundamental, and among the most basic of civil

rights. It is an interest worthy of serious protection.

Here, the trial court’s order has deprived Susan, a disabled and

indigent mother, of contact with her teenage daughter (“M”) for years. This

deprivation occurred in proceedings in which an unrepresented, disabled,

and indigent mother was pitted against experienced counsel advocating for

M’s father, David. As a result, the information presented to the trial court

was skewed and the unrepresented mother was placed at a decisive

disadvantage. The real question in the case — whether it was in the best

interest of the child to lose all contact with her mother — went unasked and

unanswered.

David’s brief does not say a single word about the serious

constitutional issues raised in Susan’s opening brief. Instead, David makes

two arguments. First, he says Susan did not request counsel. The record

proves this claim is false.

Second, David says counsel would not have made a difference.

David ignores that a failure to appoint counsel is structural error that

requires reversal without further review. David also ignores the numerous

ways that counsel for the disabled and indigent mother would have made a

difference here.

Susan was deprived of her parental rights in proceedings in which

she was unable to meaningfully present her case due to her disability and

lack of counsel. The Court should reverse the orders below and remand

this case for further proceedings after counsel is appointed for Susan.

2

LEGAL ARGUMENT

I. SUSAN REQUESTED COUNSEL

David’s contention that Susan did not request counsel is false. (RB

1.) As Susan established in her opening brief, she repeatedly and explicitly

requested an attorney. (AOB 7, 8-9, 34.)

Immediately after she was deprived of contact with her daughter,

Susan requested an attorney — and went so far as suggesting that the trial

court hold her in contempt of court in an effort to obtain appointed counsel.

(RT 131-132, 137, 143-144.) During the December 15, 2011 hearing —

the same hearing from which David selectively quotes — Susan clearly

stated on the record: “I do want an attorney.” (RT 132.) Susan repeated

her request at the end of that hearing, asking: “may I have an attorney?”

(RT 144.) Even before she was deprived of contact with her daughter,

Susan had also made it clear that she was having trouble because she was

not represented by counsel, explaining to the trial court that “when you

don’t have an attorney . . . the chances of having a fair trial, in my

experience, are less.” (RT 81.)

David contends that Susan “expressly stated she wanted to represent

herself.” (RB 2.) This is not accurate. Susan’s statement that “I do have a

right . . . to represent myself” was in the context of explaining to the trial

court that she should be allowed to speak during that hearing (because she

had no attorney to speak for her), and was not a statement that she did not

wish to be represented by counsel. In fact, this statement was made during

the same hearing in which Susan made two separate requests for a lawyer.

(RT 132, 144.)

3

Susan began the relevant exchange in attempting to respond to the

trial court’s statement that M was somewhere in the “underground.” She

said “Can I -- ” and was cut off by the judge. (RT 128.) Susan then stated,

“I do have the right to speak, and I don’t know what is legal.” (RT 128,

italics added.) The trial court responded: “hold on a second.” And then:

“You do have the right to speak. Well sort of you have the right to speak.”

(RT 128.)

It was only after this exchange that Susan referenced a right to

“represent herself.” (RT 129.) A short time later, Susan further indicated

that what she wanted was a chance to speak, when she stated: “I would like

to speak when it is my turn.” (RT 130.)

This exchange demonstrates Susan’s difficulty in presenting her case

without an attorney. It does not indicate a preference to represent herself

instead of having an attorney, only a desire to speak for herself when she

did not have counsel. Susan was fighting to preserve her relationship with

her child and was forced to fight simultaneously for her right to present her

case to the court. These rights would have been more ably vindicated if

Susan had an attorney.

II. APPOINTING COUNSEL FOR SUSAN WOULD HAVE MADE A SIGNIFICANT DIFFERENCE IN THE PROCEEDINGS BELOW

David contends that counsel for Susan would have made no

difference in the proceedings below. (RB 3.) There are at least two reasons

for rejecting this argument.

First, David ignores the rule that when a trial court wrongfully

denies assistance of counsel to an unrepresented party, the error is a

“structural error infecting a legal proceeding’s reliability” and “calls for

4

reversal per se.” (Biscaro v. Stern (2010) 181 Cal.App.4th 702, 704; AOB

12-13.) Both the California Supreme Court and the United States Supreme

Court have recognized that the deprivation of a constitutionally protected

right to counsel is the type of error that “can never be harmless.” (In re

James F. (2008) 42 Cal.4th 901, 914; Chapman v. California (1967) 386

U.S. 18, 23 & fn. 8 [listing right to counsel among “constitutional rights so

basic to a fair trial that their infraction can never be treated as harmless”];

United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150 [erroneous

deprivation of counsel of choice “unquestionably qualifies as ‘structural

error’”].)

Although David contends that counsel would have made “absolutely

no difference” (RB at 3), our courts have relieved parties deprived of

counsel of the need to show specific prejudice, and thus disposed of the

argument David attempts to advance on this appeal. This is a pragmatic

approach, recognizing that a record established by a self-represented party

cannot suffice to show what might have been different had the party been

represented by counsel.

Here, it would be impossible for David, or anybody, to ascertain

what arguments and evidence may have been developed in this case by an

attorney and what the effect would have been on the outcome of these

hearings. (AOB 24-27.) Because the error prevents this Court from

“ascertaining what might have happened absent the error,” the orders below

are “reversible per se” without a showing of prejudice. (Biscaro, supra,

181 Cal.App.4th at p. 704.)

Second, to the extent this Court might consider the difference

appointed counsel could have made in this case, the record shows the

failure to appoint counsel was not harmless under any potentially applicable

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standard.1 David ignores, rather than disputes, the concrete measures

outlined in Susan’s opening brief to demonstrate how counsel could have

made a difference in this case. (AOB 24-27.)

One way to gauge the potential impact of counsel for Susan is to

consider what David’s lawyer did in these proceedings. David was

represented by counsel throughout these proceedings. (CT 111-113, 116,

117, 212.) His lawyer significantly impacted the course of the proceedings

by submitting motions, calling and effectively questioning witnesses (RT

28-29, 35-36, 39, 42, 174), presenting evidence (RT 10, 54, 70-71, 79, 81,

96), and on numerous occasions providing legal advocacy for his client’s

position, such as by examining witnesses under oath and asking for

information and evidence from Susan (RT 22, 43, 47, 61, 64, 90, 117, 119,

137), and by arguing that Susan had “orchestrated” M’s disappearance (RT

11, 174). David’s lawyer successfully objected to the examination of M’s

cell phone (RT 50, 62) and to Susan’s characterization of the out-of-state

lock-down facility where M had been forcibly taken. (RT 167, 171.)

Counsel for Susan could have opposed these motions, cross-

examined these witnesses, tested this evidence, and countered opposing

counsel’s arguments. There were numerous opportunities for an attorney to

present witnesses, evidence, and argument on Susan’s behalf. Susan

missed these opportunities by virtue of the complexity of the law, her

disability, and the emotional stress involved with potentially losing contact

with her daughter. (AOB 11-12, 24-27.) Without the assistance of counsel,

1 The California Supreme Court has not determined the appropriate

harmless error standard for constitutional errors in civil cases that do not rise to the level of structural error, but has suggested that such errors would require reversal unless the error was either “harmless beyond a reasonable

6

Susan was unable to successfully juggle the roles of mother, advocate, and

witness.

Susan opposed David’s sending M out of state, but at the May 9,

2012 hearing on the subject, Susan was unable to provide case law,

statutory law, or admissible facts to explain why David should be

prohibited from sending M out of state. (RT 166, 174.) An attorney

representing Susan could have argued that because the custody order was

only a temporary order, the trial court was required to “enter an order

restraining the person receiving custody from removing the child from the

state pending notice and a hearing on the order seeking or modifying

custody.” (Cal. Fam. Code § 3063.)2 Although Susan orally requested a

change to the custody orders, permitting her to regain contact and custody

with her daughter (RT 168), she did not submit a motion or present any

legal argument, testimony, or evidence in support of her request to regain

custody of M or contact with M. (Ibid.) An attorney could have made a

written motion to change the temporary custody order and presented

testimony and evidence to bolster its chances of success. Either of these

measures could have made a significant difference in the proceedings

below regarding whether David was permitted to send M out of state and

whether the order prohibiting contact between Susan and M should remain

in effect.

doubt” or at least “harmless by clear and convincing evidence.” (In re James F., supra, 42 Cal.4th at p. 911, fn. 1.)

2 Under Family Code Section 3060 et seq., the no-contact and custody orders entered by the trial court were “ex parte temporary custody orders” because they were temporary orders setting custody which were ordered “in the absence of an agreement” between Susan and David regarding custody. No final orders modifying custody have been entered. (See Cal. Fam. Code § 3048 [requiring that final custody orders comply with certain form and notice requirements].)

7

The relationship between a mother and her daughter is worth

protecting. It is California’s “public policy . . . to assure children have

frequent and continuing contact with both parents.” (Cal. Fam. Code §

3020 (b).) This policy is so strong that California has a special statute

regarding the circumstances when a parent convicted of first degree murder

of the other parent will still be permitted to have unsupervised contact with

his or her child. (Cal. Fam. Code § 3030 (c).)

An attorney could have presented evidence explaining Susan’s

relationship with her daughter, which would have shown that depriving

Susan of all contact with M is not in M’s best interests. An attorney

advocating continuing contact could have asked: Who are M’s friends?

Did M ever ask you for advice on how to handle friendships? Did M ever

ask you for advice on how to handle other relationships? Do you cook for

your daughter? What is her favorite food? Does she help you cook? What

does she like to eat on her birthday? What else do you do with M on her

birthday? How does M do with her schoolwork? Do you help her with

school work? What did you tell her? What kind of television did you

watch with M? What were her favorite shows? What games did M like to

play? How did you take care of M when she was sick? What made her feel

better? Without the benefit of this kind of testimony, the trial court was

unable to make an informed decision about the harm that would result from

preventing contact between M, a teenage girl, and her mother.

An attorney acting as Susan’s advocate could have called David as a

witness. While opposing counsel found it advantageous to call Susan as a

witness (RT 174), Susan never called David as a witness. Counsel

representing Susan could have asked numerous questions to David to help

the trial court determine where M was staying and why she had left her

father’s house, for example: Just a moment ago, you stated that it was “a

8

possibility” that M was with your “brother.” (RT 77.) Why? Have you

heard from your brother? What did he say? Counsel could have helped

shed light on M’s disappearance, asking: Can you think of why M might

have run away? When M told you that she had gone to “a friend’s house

and that she did not want to come home that evening” because you had

been “emotionally abusive” to her, what was your reaction? (CT 93.)

When you went to pick up M from the friend’s house and you told Ms.

Miller that “things would not be easy for [M] now” what did you mean?

(CT 102.) How long did you sleep in the same bed with M? (CT 30-34.)

Do you think this was appropriate? Did M ever express discomfort with

the situation? You say that when you had your hand down your pants while

you were watching television in the bed that you shared for five months

with your teenage daughter it was because you had jock-itch? (CT 33-34.)

Did you ever get a prescription for this jock itch? Have you smoked

marijuana in front of your daughter? (CT 64.) Did you throw a table that

M was seated at? (Ibid.) Why?

An attorney representing Susan also could have called other

witnesses to testify about M’s best interests — Susan did not call any

witnesses. These witnesses could have included Mr. Price, the academic

counselor at M’s school, to speak about whether M’s recent poor academic

performance was “the result of what was taking place at the father’s home.”

(CT 36-37.) The attorney could have called Ms. Miller, a family friend

with whom M had visited before running away, asking: Did M appear

upset when she arrived at your house? Was she sobbing? (CT 99.) Did

she tell you why she was upset? Did she say she would never go back to

live with her father? (Ibid.) Do you know why she ran away? Where did

you think M might have run away to? Did she mention whether she might

stay with her uncle? Did she say her father was “emotionally abusive”?

9

(CT 93.) How? Did David call you when M stayed with you? (CT 99.)

What did he say? Did he appear angry? Did you think M was safe with

David?

If (as the trial court suspected) Susan knew where M was (RT 89,

90), an attorney might have shown that David also knew where M was (RT

77) and that Susan’s motivations were to further M’s best interests.3 An

attorney could have shown the trial court the clear fact that Susan loved her

daughter, that M loved her mother, and, regardless of anything else, this

was a relationship worth preserving. (See Cal. Fam. Code § 3020 (b)

[establishing California’s public policy in favor of continuing contact with

both parents].)

Studies show that the absence of counsel significantly affects the

outcomes of child custody cases. (Mnookin, Maccoby, Albiston & Depner,

What Custodial Arrangements are Parents Negotiating?, Divorce Reform at

the Crossroads, p. 64 (S. Sugarman and H. Kay edits. 1990) [finding that

unrepresented parents were less likely to win custody when they faced

represented parents]; AOB 21-22, 21 fn. 7, [collecting studies

demonstrating counsel’s effect on the outcomes of civil cases].) The

3 David contends that the court made a “finding” regarding Susan’s

involvement in her daughter’s disappearance, and that legal representation would not have altered what had “had become painfully apparent about M’s whereabouts.” (RB 3.) The trial court mentioned a “finding” in the following exchange: “And isn’t the reason Mr. Ferris has sole legal custody and sole physical custody with a no-contact order from you because you assisted the child into the underground, and the child disappeared? . . . Wasn’t that the finding I made, though?” (RT 168, 169.) The trial court, however, never made a formal finding regarding any involvement by Susan in her daughter’s disappearance. (CT at 111-118, 212.) Nor did the trial court make a formal finding regarding M’s whereabouts during her absence. (Ibid.)

10

assistance of counsel makes a difference in these types of cases and it

would have made a difference in this case.

III. DAVID DOES NOT DISPUTE SUSAN’S RIGHT TO COUNSEL

David does not dispute any aspect of Susan’s argument that she had

a right to counsel under the due process clause of the California

Constitution. Nor does he challenge Susan’s assertion that her fundamental

liberty interest in the custody, contact, and care for M is protected by due

process, which applies when the state deprives a citizen of a significant

liberty interest. (Cal. Const. art. I, § 7(a); People v. Allen (2008) 44 Cal.4th

843, 862.) David does not dispute that the interest of a parent in the

custody and contact with her child is such an interest. (Salas v. Cortez

(1979) 24 Cal.3d 22, 28; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1707

[noting that where the possibility of a loss of custody or “prolonged

separation from a child” exists, due process is implicated].)

Nor does David dispute that the four factors of the due process

balancing test weigh strongly in favor of a constitutional requirement that

counsel must be appointed before the state may deprive a disabled and

indigent parent of contact with his or her children. (In re Malinda S. (1990)

51 Cal.3d 368, 383.) The four relevant factors weigh heavily in favor of a

right to counsel in this case.

First, the interests in maintaining the important relationship between

a parent and child weigh heavily in favor of requiring appointment of

counsel to an indigent and disabled parent before the state may deprive the

parent of contact with her children. (In re Malinda S., supra, 51 Cal.3d at

p. 383.) The parent’s interest in the custody, care, and contact with her

child is a “compelling one, ranked among the most basic of civil rights.”

11

(Salas, supra, 24 Cal.3d at p. 28; In re Jay R. (1983) 150 Cal.App.3d 251,

259; In re Sade (1996) 13 Cal.4th 952, 989.)

Second, child custody proceedings have a high “risk of erroneous

deprivation” when one party is unrepresented. (In re Malinda S., supra, 51

Cal.3d at p. 383.) Courts have recognized that the emotional impact of

participating in proceedings that threaten parental rights hampers a parent’s

ability to perform the essential advocacy functions such a hearing requires.

(In re Emilye A. supra, 9 Cal.App.4th at p. 1709.)

Third, Susan has a protected dignity in “present[ing] [her] side of the

story before a responsible government official” that was undermined by her

lack of counsel and her mental disabilities. (In re Malinda S., supra, 51

Cal.3d at p. 383; ACT 1 [explaining that Susan’s disabilities “restrict [her]

in-court comprehension and communication skills”]; Payne v. Superior

Court (1976) 17 Cal.3d. 908, 924 [where “no other relief will preserve his

right of access to the courts,” denial of appointed counsel to an indigent

prisoner in a civil case was impermissible under the California

Constitution].)

Fourth, the State’s interest weighs in favor of appointment of

counsel because the government has a compelling interest in ensuring an

accurate determination of parental rights. (In re Sade, supra, 13 Cal.4th at

p. 959, fn. 1; Salas, supra, 24 Cal.3d at p.33.) The State also has a strong

interest in the continued relationship between a parent and child. (Cal.

Fam. Code § 3020 (b); Cal. Welf. & Inst. Code § 16000; Cal. Fam. Code §

3040 (a).) In contrast, any state interest in not providing counsel is only

“financial.” (Salas, supra, 24 Cal.3d at p. 33.)

12

IV. FEDERAL AND STATE LAWS PROTECTING PERSONS WITH DISABILITIES GAVE SUSAN A RIGHT TO COUNSEL IN THIS CASE

David does not dispute that Susan was entitled to an attorney as an

accommodation for her disability to protect her right to full and equal

access to the benefits of the family court proceedings. The trial court was

aware that Susan has a mental disability that qualifies her as “disabled”

under state and federal statutes. (AOB 32-33; ACT 3-11.) Susan requested

a reasonable accommodation to address her disability, (RT 81, 144, 172),

yet the trial court did not provide the accommodation of an attorney to help

her “meaningfully participate” in the proceedings. (See Franco-

Gonzalez v. Holder (C.D. Cal. 2013) 2013 WL 3674492 at p. *6 [mentally

disabled immigrants facing detention or removal proceedings must be

appointed an attorney to enable them to “meaningfully participate” in these

proceedings].)

V. IT IS UNDISPUTED THAT THE TRIAL COURT ERRED BY IMPOSING THE $2,500 SANCTION

By his failure to suggest otherwise (or even mention the point),

David concedes the $2,500 sanction against Susan must be reversed. The

trial court plainly abused its discretion when it imposed a $2,500 sanction

against Susan without considering whether the sanction would constitute an

“unreasonable financial burden.” (Cal. Fam. Code § 271(a); In re Marriage

of Petropoulos (2001) 91 Cal.App.4th 161, 180.)

If the trial court had conducted the required analysis, it could only

have found that such a sanction imposed an undue burden. The trial court’s

earlier child support order had left Susan with only $336 per month in

income, (CT 201, 202), and the $2,500 sanction would impose an undue

13

burden on Susan by jeopardizing her ability to afford rent and basic

sustenance.

CONCLUSION

For all the reasons explained in her opening brief and here, Susan

submits that the orders challenged by this appeal should be reversed and the

cause remanded to the trial court with directions to appoint counsel for

Susan and to revisit all of the issues that are the subject of the challenged

orders.

Dated: December 10, 2013

MORRISON & FOERSTER LLP

By: JAMES J. BROSNAHAN Attorney for Appellant SUSAN C. FERRIS

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CERTIFICATE OF COMPLIANCE

As required by rule 8.204(c)(1) of the California Rules of Court and

in reliance on the word count of the computer program used to prepare this

brief, counsel certifies that it was produced using 13 point Roman type and

consists of 3,666 words, including footnotes.

Dated: December 10, 2013

MORRISON & FOERSTER LLP

By: JAMES J. BROSNAHAN Attorney for Appellant SUSAN C. FERRIS

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